6.  The applicant was born in 1963 and is currently serving a sentence of life imprisonment in HM Prison Peterhead.
7.  In the early hours of the morning of Sunday 5 December 1999, Mr Barry Wallace, then aged eighteen years, disappeared following a Christmas function organised by his employers. There was evidence that Mr Wallace had consumed a great deal of alcohol and, after leaving the function, had had an altercation with a friend, G.B., before the two youths made up and Mr Wallace left to go to a nightclub. The last sighting of him was at the entrance to the nightclub at around 1.30 a.m.
8.  On 6 December 1999 members of the Central Scotland Police Underwater Search Unit discovered severed parts of a human body while on a training exercise in Loch Lomond. Further body parts were discovered on 7, 8 and 10 December 1999. On 15 December 1999 a human head was discovered at Barassie Beach in Troon. Some weeks later, on 8 January 2000, a human torso was recovered from Loch Lomond. DNA analysis revealed the body parts to be those of Mr Wallace.
9.  On 17 December 1999 the police conducted a search of the applicant’s home while he was absent and discovered quantities of Mr Wallace’s blood, as well as other significant items. On the evening of 17 December 1999, upon hearing of the search of his home via the media, the applicant left Scotland.
10.  On 9 January 2001 the applicant was extradited from the Netherlands to the United Kingdom to stand trial. Further details of the extradition process are set out in the Court’s decision in Beggs v. the United Kingdom (No. 2) (dec.), no. 14599/10, 16 October 2012.
11.  Details of the various preliminary matters dealt with in the domestic courts are set out in the Court’s decision in Beggs (No. 2), cited above. The following is a brief summary of the relevant matters.
12.  On 10 January 2001 the Sheriff granted an order to prevent reporting of the case.  On 12 January 2001 the British Broadcasting Corporation (“BBC”) lodged a petition to the nobile officium of the High Court of Justiciary (“the High Court”), an extraordinary remedy to be granted only in exceptional circumstances (see paragraph 178 below). In its petition, the BBC sought an order quashing the Sheriff’s decision to impose an order preventing the reporting of the case.
13.  On 15 January 2001 the High Court received the report from the Sheriff on his order to prevent the reporting of the case. The applicant’s agents lodged a petition to the nobile officium for an order restricting reporting of the case.
14.  On 17 January 2001, the applicant appeared before the Sheriff Court and made no plea or declaration. He was fully committed for trial and remanded in custody for 110 days. The applicant’s agents advised the prosecution that they intended to abandon the nobile officium application.
15.  On 14 March 2001 the Lord Advocate indicted the applicant for trial on a charge of murder in the High Court sitting in Edinburgh, to commence on 17 April 2001.
16.  On 3 April 2001 the applicant lodged a minute of postponement of the trial in order to seek preliminary hearings to determine issues concerning pre-trial publicity and the competency of the indictment. The trial was postponed until 14 May 2001.
17.  On 10 May 2001 at a preliminary hearing, the applicant sought a further adjournment of the trial. This was granted and a trial date of 25 June 2001 was fixed. A preliminary hearing in respect of the various minutes lodged was fixed for 4 June 2001.
18.  On 4 June 2001 the preliminary hearing was continued on the applicant’s motion.
19.  At the continued preliminary hearing on 29 June 2001, the applicant’s legal advisers argued a plea in bar of trial on the grounds of the extensive media coverage and the inclusion in the indictment of matters excluded from the Dutch terms of extradition. This was refused by the High Court in a written opinion by Lord Wheatley. Leave to appeal was granted.
20.  The Appeal Court of the High Court of Justiciary (“the Appeal Court”) heard the appeal on 7-8 August 2001 and, on 17 August 2001, refused the appeal and issued a written opinion.
21.  On 14 September 2001 the applicant pleaded not guilty to the charge. He was represented by senior counsel. His counsel subsequently made a request for an order under section 4(2) of the Contempt of Court Act 1981 restricting the reporting of the trial. The request was refused by Lord Osborne for reasons set out in his written opinion dated 17 September 2001.
22.  Details of the trial are set out in full in the Court’s decision in Beggs (No. 2), cited above. The following is a brief summary of the relevant matters.
23.  On 18 September 2001, the jury were called and sworn and the applicant’s trial commenced before Lord Osborne.
24.  On 21 September 2001 Lord Osborne refused the applicant’s motion for publishers of certain material to be ordained to appear at the bar of the court to answer allegations of contempt of court, for reasons set out in his second written opinion.
25.  On 26 September 2001 Lord Osborne repelled the applicant’s objection to the admissibility of certain statements, for reasons set out in his third written opinion.
26.  On 3 October 2001 Lord Osborne repelled the applicant’s objection to questioning at trial regarding production no. 57 (a search warrant) for reasons set out in his fourth written opinion.
27.  On 12 October 2001, the applicant was convicted of murder by majority verdict of the jury. He was sentenced to life imprisonment with a tariff (punishment part) set at twenty years, to run from 28 December 1999.
28.  On 17 October 2001, the applicant formally lodged his written intention to lodge an appeal against conviction before the Appeal Court. He was required to lodge a note of appeal within six weeks (see paragraph 172 below). According to the applicant, on 22 October, he requested a copy of the Book of Adjournal, which contained a record of the indictment and the minutes of the trial proceedings.
29.  On 29 November 2001 the trial judge’s charge to the jury was lodged with the Justiciary Office (court registry). Upon receipt, the Justiciary Office intimated a copy to the applicant’s agents.
30.  According to the applicant, by 3 December 2001, a copy of the Book of Adjournal had not yet been received and his legal advisers sent a reminder to the court.
31.  On 4 December 2001 a note to the Parole Board was produced by Lord Osborne.
(b)  Extensions of time for lodging note of appeal
32.  On 13 December 2001, the applicant’s agents sought a first extension under section 110(2) of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act – see paragraph 174 below) of the time allowed for lodging the note of appeal. The application stated:
“The Appellant was sentenced on 12th October 2001 following a trial at Edinburgh High Court which lasted almost 5 weeks. The volume of documentation in connection with preliminary matters which fall within the scope of the appeal is now very great, and in the time available Senior Counsel has not had time to examine the extensive documentation – there were 3 opinions of the trial judge in relation to preliminary matters, and points of law raised during the trial – along with the Charge to the jury to be considered.
An extension of 6 weeks is sought to enable the Note of Appeal to be framed, as it is not in the interests of justice that the appellant’s appeal be prejudiced because of pressure of work on Senior Counsel.”
33.  The application was received by the Justiciary Office on 20 December 2001 and the following day, Lord Johnston granted the applicant a six-week extension of time to lodge his note of appeal. The new time-limit was due to expire on 1 February 2002.
34.  On 21 January 2002, the applicant sought authorisation from the Scottish Legal Aid Board (“SLAB”) for transcription of the evidence and legal submissions at trial. On 23 January 2002, authorisation was granted and transcripts were ordered from the court.
35.  On 29 January 2002, the applicant’s agents sought a second extension of the six-week time-limit. The application stated:
“1. The Appellant was sentenced on 12th October 2001 following a trial at Edinburgh High Court which lasted almost 5 weeks. On examination of the extensive documentation here, Senior Counsel has indicated that there is additional information which he requires before the grounds can be framed. 2. Transcripts of the Advocate Depute’s speech to the jury, and the evidence of certain of the forensic scientists and two witnesses will be required. 3. Sanction was sought from the Scottish Legal Aid Board to cover the cost of transcription and on 23rd January 2002 this was granted. 4. The Justiciary Office has been asked to put in hand the transcription of the required portions of the trial, using the express service, and although it is hoped that the transcripts will be available within the next 10 days o[r] so, it is not anticipated that there will be sufficient time to enable them to be examined in the detail required and the Grounds framed.
An extension of a further 6 weeks is sought to enable the Note of Appeal to be framed, as it is not in the interests of justice that the appellant’s appeal be prejudiced because additional extensive transcripts are required before formulation of the Grounds of Appeal.”
36.  On 30 January 2002 the applicant was granted a further six-week extension of time to lodge his note of appeal. The new time-limit was due to expire on 13 March 2002.
37.  On 7 February 2002, the applicant’s agents sought a third extension of the time-limit for lodging the note of appeal. The application stated:
“The Appellant was sentenced on 12th October 2001 following a trial at Edinburgh High Court which lasted almost 5 weeks. An extension of time has been granted to lodge the Note of Appeal Against Conviction. That time limit now expires on 13th March 2002. At consultation with the client on 3rd February 2002, Senior Counsel took the view that an Appeal Against Sentence would be required. This has been prompted by production of the ‘Parole Report’ by the Judge, and the service on the appellant of the extract conviction.
An extension of time to the 13th March 2002 is sought to enable the Note of Appeal Against Sentence to be incorporated with the Note of Appeal Against Convention.”
38.  On 11 February 2002, Lady Paton granted the application, according a further five weeks from that date for the lodging of the note of appeal.
39.  On 8 March 2002 the applicant’s agents sought a fourth extension of the time-limit for lodging the note of appeal. The application stated:
“1. The Appellant was sentenced on 12th October 2001 following a trial at Edinburgh High Court which lasted almost 5 weeks. Extensive documentation has been produced in the way of transcripts of certain evidence at the trial and Opinions of the trial judge on certain preliminary matters. However it has now become apparent that further transcript[s] of evidence heard at the trial-within-a-trial is required because the Opinion produced contains factual inaccuracies. 2. The Trial Judge did not produce a decision on the preliminary point taken in relation to ‘crime not charged’ and in these circumstances a transcript of the submissions made will be required. Sanction will be required from SLAB for these further transcripts. 3. SLAB has only now granted Sanction to allow an Opinion to be obtained from A Fulford QC who is a Silk at the English bar and an expert on pre-trial publicity. There will be a ground of appeal specifically relating to pre-trial publicity and in particular the influence of the internet. 4. One of the proposed Grounds of Appeal relates to speciality in the extradition process. Sanction has recently been sought from SLAB to enable the Opinion of an expert (Dr Clive) [to be obtained] ... This will be required before the ground can be framed.
An extension of a further 6 weeks is sought to enable the Note of Appeal to be framed, as it is not in the interests of justice that the appellant’s appeal be prejudiced because additional transcripts and further expert advice is required before formulation of the Grounds of Appeal.”
40.  On 11 March 2002, Lord Philip granted the application and allowed a further six-week extension of time to lodge the note of appeal.
41.  On 19 March 2002, a request for sanction for transcription of further evidence was received by the SLAB. The request was granted the following day, 20 March 2002.
42.  On 18 April 2002 the applicant’s agents sought a fifth extension of the time-limit for lodging the note of appeal. The application stated:
“1. The Appellant was sentenced on 12th October 2001 following a trial at Edinburgh High Court which lasted almost 5 weeks. Extensive documentation has been produced in the way of transcripts of certain evidence at the trial and opinions of the Trial Judge on certain preliminary matters. A further transcript was required of the evidence heard at a trial within a trial, because the opinion produced in that regard contained factual inaccuracies. 2. Sanction was sought for transcription and was granted on 21st March 2002. The Justiciary Clerk intimated on 21st March 2002 that the transcribers had been instructed to extend the tapes to typed format. However despite a request for express service, the transcripts were not available until 8th April 2002, and there has been insufficient time to have that portion of the grounds framed and considered by the client. 3. Sanction has now been obtained from SLAB to enable the expert opinion of Dr Clive to be obtained but this is not yet to hand.
An extension of a further 6 weeks is sought to enable the Note of Appeal to be framed, as it is not in the interests of justice that the appellant’s appeal be prejudiced because detailed consideration of novel and complex matters are required before the Grounds are formulated.”
43.  On 23 April 2002, Lord Philip granted the application and allowed a further six-week extension of time to lodge the note of appeal.
44.  On 20 May 2002 the applicant was transferred from HM Prison Edinburgh to HM Prison Peterhead, some four hours’ drive north. The transfer was considered to be beneficial to the applicant because, as the offence of which he was convicted included a charge of sodomy against the victim, he was classified as a sex offender, and HM Prison Peterhead was the prison normally used to house long-term male prisoners who were sex offenders. The applicant subsequently made repeated requests to the prison authorities to be transferred to a prison in central Scotland, in order that he could communicate more readily with his legal advisers. The requests were refused.
45.  On 21 May 2002 the applicant’s agents sought a sixth extension of the time-limit for lodging the note of appeal. The application stated:
“1. The Appellant was sentenced on 12th October 2001 following a trial at Edinburgh High Court which lasted almost 5 weeks. Extensions of time have been granted on various occasions since then. The last day for lodging the note of appeal in terms of the most recent extension is 4 June 2002. 2. Draft grounds have been framed and are being actively revised by senior and junior counsel. However on 20 May 2002 the Appellant was moved from HM Prison Saughton [Edinburgh] to HM Prison Peterhead. The location of the Appellant at HM Prison Peterhead renders the arrangements required for Senior and Junior Counsel and agents to consult with him much more time consuming and difficult to co-ordinate around Court attendances. 3. An extension of time of a further six weeks is sought to enable the Appellant’s instructions on the final form of the grounds of appeal to be taken and to enable the Note of Appeal to be lodged.”
46.  On 22 May 2002 the applicant was granted a further six-week extension of time to lodge his note of appeal.
47.  On 24 May 2002 the SLAB received an application for sanction to cover the costs of a visit to HM Prison Peterhead. After continuing the application for information, which was received on 4 June 2002, authority was granted on 7 June 2002.
48.  On 2 July 2002 the applicant’s legal advisers lodged a formal note of appeal against conviction and sentence. The note contained eight grounds of appeal against conviction, each ground being subdivided into a number of subparagraphs, and one ground of appeal against the tariff part of his sentence. The grounds referred to prejudicial publicity, extradition and the rule of specialty, the admission of evidence, the conduct of the prosecutor at trial, the lack of reasons from the jury, the trial judge’s directions to the jury and the length of the tariff (the punishment part of the sentence) fixed by the trial judge
(c)  Obtaining the trial judge’s report
49.  On 16 August 2002, the applicant’s agents contacted the court to inquire after the trial judge’s report on the note of appeal (see paragraph 176 below), which was required in order for the court to consider whether to grant leave to appeal. They were advised that the report had not yet been ordered on account of a missing notebook which was in the process of being located. The report was ordered that day and the trial judge was given one month to produce the report.
50.  Between 16 August 2002 and 28 November 2002, Lord Osborne was on leave for three weeks, was sitting in the Appeal Court for nine weeks and was presiding over criminal trials for three weeks. On 18 September 2002 and 13 November 2002, the applicant’s agents wrote to the Appeal Court regarding the delay in the preparation of the report. Lord Osborne requested three writing days from 19-21 November 2002 in order to progress his report.
51.  The trial judge’s report on the note of appeal was issued on 28 November 2002 and received by the applicant’s agents on 3 December 2002. It was twenty-eight pages long and dealt with the preliminary matters addressed by Lord Wheatley and on appeal, the controversial matters at trial, Lord Osborne’s four written opinions and the grounds of appeal.
(d)  The single sift
52.  The application for leave to appeal was considered by a “single sift” judge (see paragraph 177 below). On 20 December 2002, the single sift judge, Lord Bonomy, restricted leave to appeal against conviction and sentence to a limited number of the grounds specified by the applicant in the note of appeal, under section 107(7) of the 1995 Act (see paragraph 177 below). The decision, together with reasons, was set out in a letter to the applicant’s agents dated 6 January 2003. The letter advised that an appeal against the decision could be lodged within fourteen days but did not indicate under what legislative provision such an appeal should be made.
(e)  The second sift
53.  By letter dated 17 January 2003 the applicant’s agents intimated their intention to have the partial refusal reviewed by the “second sift” under section 107(4) of the 1995 Act (see paragraph 177 below). They sought an additional eight weeks to lodge further submissions directed at the refused grounds of appeal on the basis that, due to the applicant’s detention at HM Prison Peterhead, consultation with him was proving difficult. On 7 February 2003 the applicant’s agents were advised that the application for leave to appeal would not be placed before the High Court before 18 March 2003.
54.  On 17 March 2003 the applicant’s agents wrote to the court requesting a further two-week extension of time to lodge the supplementary submissions and documents.
55.  On 20 May 2003 the applicant’s agents sent submissions to the court in support of their application to the second sift.
56.  On 21 July 2003 the applicant’s agents sent further submissions to the court in support of their application to the second sift.  On the same day, the court authorities advised that the papers had not yet been passed to the second sift judges.
57.  On 20 August 2003, the second sift judges refused the applicant’s appeal against the partial refusal of leave to appeal. The reasons for refusal were that:
“For the reasons given by Lord Bonomy, and notwithstanding the further representations made on behalf of the appellant, we consider the grounds on which leave was refused are unstateable [unarguable].”
58.  By letter of 7 October 2003, the applicant sought further reasons for the refusal of the second sift judges to uphold his appeal against the decision of the single sift judge.
59.  On 9 October 2003 the SLAB received an application from the applicant for legal aid for a petition to the nobile officium jurisdiction of the High Court (see paragraph 178 below) to overturn the decision of the second sift judges. It continued the application for information on 10 and 21 October 2003.
60.  On 27 October 2003 the SLAB received a copy of the decision taken at the second sift.
61.  In a note dated 1 November 2003 senior counsel for the applicant advised that it was not possible to explain the second sift refusal in the absence of any reasons for the refusal. By letter of 6 November 2003 the applicant’s agents sent counsel’s note to the court and requested further reasons.
62.  On 6 November 2003 the SLAB sought further information in support of the application for legal aid for a petition to the nobile officium. On 12 November 2003 further papers were received by the SLAB from the applicant’s agents. On 27 November 2003 the SLAB once again continued the application for further information.
63.  By letter of 4 December 2003 the clerk noted that in the reasons set out in the decision of 20 August 2003, the second sift judges had stated that they had taken into account the further representations by the applicant and he noted that they had adhered to the reasons given by Lord Bonomy.
64.  On 9 December 2003 further papers were received by the SLAB from the applicant’s agents in respect of the application for legal aid for the nobile officium petition.
65.  On 29 December 2003, the SLAB authorised legal aid for a petition to the nobile officium.
(f) The petition to the nobile officium
66.  On 4 May 2004, the applicant’s request for a transfer to a central Scotland prison was granted on a temporary basis. He was transferred from HM Prison Peterhead to HM Prison Edinburgh, for a four-week period in order to facilitate the preparation of his appeal against conviction and sentence, including the nobile officium proceedings.
67.  On 14 June 2004, the applicant’s petition to the nobile officium to challenge the decision of the second sift judges was lodged with the court.  On 18 June 2004, the High Court granted warrant for the service of the nobile officium petition.
68.  On 7 July 2004, a preliminary hearing on the petition to the nobile officium took place. The court ordered that the prayer of the petition (i.e. what was being sought) be amended within four weeks to provide greater specification of what was being sought and that the applicant lodge a note of argument. The Crown was given four weeks thereafter in which to lodge a note of argument. The petition was continued to a date to be fixed.
69.  On 4 August 2004 the applicant’s agents lodged a minute of amendment to the petition, along with a full note of argument. A date for the hearing was fixed at the convenience of the applicant’s counsel.
70.  On 8 December 2004, the petition to the nobile officium was argued and granted. In a written decision issued on 18 January 2005 the High Court set aside the decision of the judges on the second sift on the basis that it was not competent for the applicant to appeal to the second sift the decision of a single sift judge to specify only certain grounds of appeal as arguable. That being the case, the decision of the second sift judges was also incompetent. The court further advised that in a case such as the applicant’s, an application could be made to the court for leave to argue the refused grounds “on cause shown” under section 107(8) of the 1995 Act (see paragraph 177 below). Such an application would be considered in open court.
(g) The section 107(8) application to argue further grounds of appeal on cause shown
71.  On 25 January 2005 the applicant’s agents requested further transcripts of proceedings at the trial.  On 3 February 2005, the clerk authorised the transcripts.
72.  On 26 April 2005, the applicant lodged an application under section 107(8) of the 1995 Act for an order to entitle applicant’s counsel to found upon those grounds of appeal which Lord Bonomy had failed to specify as arguable in his decision of 20 December 2003. On 27 April 2005 the further transcripts were lodged with the court.
73.  On 13 May 2005, 29 June 2005, 12 July 2005 and 5 September 2005, the applicant’s legal advisers wrote to the court seeking a hearing date. On 23 September 2005 the applicant’s agents were advised that a hearing date of 28 October 2005 had been fixed.
74.  The section 107(8) application was heard on 28 October 2005 and the Court made avizandum (reserved its judgment).
75.  On 25 November 2005, the Appeal Court granted leave to appeal on all grounds set out in the note of appeal lodged on 2 July 2002. The applicant was ordered to lodge reformulated grounds of appeal within four weeks, i.e. by 23 December 2005.
76.  On 16 January 2006 a reformulated note of appeal was lodged with the Appeal Court, taking into account the judgment of 25 November 2005.
77.  On 20 March 2006 authorisation was sought from the SLAB for further transcripts. This was partially granted.  On 21 March 2006 the applicant’s agents requested further transcript evidence from the trial proceedings.  On 29 March 2006 the request for further transcripts was authorised by the clerk.
78.  On 4 April 2006 a request by the applicant for interim liberation pending the determination of his trial was refused by the single judge.
79.  On 25 April 2006 a hearing of the applicant’s appeal against the refusal of interim liberation was continued to 28 April 2006 on the applicant’s motion, as his senior counsel was not available.  On 28 April, the applicant’s appeal against the refusal of interim liberation was refused.
80.  On 12 May 2006, the applicant’s request for funding to allow transcripts to be prepared on an expedited basis was refused by the SLAB on the ground that this would not have any impact on the speed of the appeal procedure.
81.  On 26 May 2006, the applicant’s agents sent letters to the Crown, the Foreign and Commonwealth Office and Strathclyde Police requesting disclosure of documents.
82.  On 21 June 2006 the applicant’s agents requested further transcripts from the trial, namely of eight separate legal submissions made by counsel.  On 5 July 2006 the clerk authorised the request for further transcripts.
83.  On 10 July 2010 the Crown replied to the request for disclosure of 26 May 2006 and refused disclosure in the terms requested.
84.  On 11 July 2006 a procedural hearing in the appeal was heard before three judges. The court decided to allow the applicant’s reformulated grounds of appeal to be received and to be treated as the applicant’s grounds of appeal. It also directed that any petition for recovery of documents should be lodged with the court within three weeks, with answers lodged thereto, if so advised, within a further three weeks. At that stage a procedural hearing was to be held before a single judge to consider any further questions of procedure. The court remitted the third ground of appeal (concerning the validity of the search warrant) to the Sheriff inviting him to report to the court on the basis upon which the warrant was granted, to advise what material he had had or still had before him and to indicate what his usual practice would be in such situations. Finally, the court refused the applicant’s motion for permission to have any future appeal hearings tape recorded, on the basis that such a step would not be directed to a more expeditious disposal of the appeal.
85.  On 31 July 2006, the applicant lodged a first petition for recovery of documents with the court. The annexed specifications of documents and property were wide in their terms, covering in particular pathology reports, all witness statements taken by the police during the investigation, information about search warrants, information about the applicant’s travel to the Netherlands and information about K.P., a deceased witness.
86.  On 2 August 2006 the applicant’s agents lodged a devolution minute in the appeal process (see paragraphs 187-188 below) arguing that the Lord Advocate’s failure to disclose all the documents and property described was or would be incompatible with the applicant’s rights under Article 6 § 1 of the Convention.
87.  On 23 August 2006 the Crown and Strathclyde Police each lodged answers to the applicant’s petition for recovery of documents. On the same day the Crown provided the applicant’s agents with several documents referred to in the specification of documents annexed to the petition.
88.  On 26 September 2006 the applicant’s agents sent to the Crown an amended petition for recovery of documents. On the same day a procedural hearing was held before a single judge. The judge allowed the amended petition for recovery of documents to be received and on the applicant’s motion continued the procedural hearing to 10 October 2006 in order to allow counsel for the applicant an opportunity to consider and review a decision of the SLAB regarding sanction for unusual work or expenditure.
89.  On 4 and 5 October 2006 the Crown wrote to the applicant’s agents asking that they provide a copy of correspondence and media samples referred to in the amended petition for recovery of documents.
90.  On 10 October 2006 the continued procedural hearing took place before a single judge in the petition for recovery of documents. The applicant’s counsel advised the court that the legal aid issue had been resolved and that he was ready to proceed to a full hearing on the petition. The Crown and Strathclyde Police advised the court that they would need time to lodge amended answers, in light of the amendments to the petition received on 26 September 2006. The court allowed the parties fourteen days to lodge answers and continued the hearing to 31 October 2006.
91.  On 10 October 2006 a second procedural hearing was held before three judges in the applicant’s petition for review of interim liberation. The applicant’s counsel advised the court that he had been unable to consult with the applicant and that a further procedural hearing had been assigned in respect of other matters. The court accordingly continued consideration of the petition for review of interim release until 31 October 2006.
92.  On 24 October 2006 the Crown lodged answers to the amended petition for recovery of documents.
93.  On 31 October 2006, further procedural hearings took place before three judges in the petition for recovery of documents and the petition for interim release. The court was informed that productive meetings regarding recovery of documents had taken place and continued consideration of that petition to 28 November 2006. On the applicant’s motion, the petition for review of interim release was continued to the same date.
94.  On 3 and 7 November 2006 the applicant’s agents wrote to the Crown requesting disclosure of documents before 9 November 2006.  On 23 November 2006 the Crown wrote to the applicant’s agents enclosing copies of police statements for civilian witnesses who gave evidence at trial.
95.  On 28 November 2006, the continued procedural hearings took place before three judges. The court heard the parties and appointed the petition for recovery of documents to a full three-day hearing before a bench of three judges on a date to be fixed. The parties confirmed that steps would be taken to try and resolve the issues without the need for a hearing. The court also allowed answers for Strathclyde Police to be received.
96.  As to the applicant’s petition for interim release, Lord Johnston, delivering the opinion of the court, noted:
“3. We recognise that the length of time, as shown on the chronology up to the present date, is lengthy but we are not prepared, on the evidence before us, to classify this as unreasonable delay in terms of Article 6 of the ... Convention. 4. A number of factors have contributed to the delay, not least Court procedures, albeit instigated to some extent by the [applicant], and, as a result, the grounds of appeal now before this Court were only reformulated at the beginning of this year. There has also been further delay still ongoing as regards the disputed documents covered by a specification of documents which we understand has undergone considerable alteration. We are not therefore prepared to recognise that Article 6 has been breached at this stage of the process. In any event the issue would be better considered when the whole appeal process is complete.”
97.  In the exercise of its discretion, taking into account the gravity of the offence, the applicant’s history of violence and the risk to the public, the court refused to grant the application for interim release.
98.  On 11 December 2006 the applicant’s agents wrote to the Crown requesting disclosure of documents not previously requested.  On 21 December 2006 the Crown replied.
99.  On 7 January 2007, a procedural hearing before three judges took place in relation to the petition for recovery of documents. On the motion of counsel for the applicant, the court allowed the amended petition to be served upon the Sheriff Clerk at Kilmarnock and the Scottish ministers and allowed these parties to lodge answers within twenty-one days.
100.  On 30 January 2007 the applicant’s agents wrote to the Crown seeking clarification of matters relating to the precognition of (the taking of a statement from) K.P., the deceased witness.  On 7 February 2007 the Crown replied.
101.  By letter of 26 February 2007 to the Crown the applicant’s agents requested a meeting that week and sought clarification of certain matters in relation to the disclosure of documents. A meeting took place on 1 March 2007.
102.  At a hearing on 2 March 2007, in the absence of any opposition from the parties, the court granted the petition in part and ordered the production and recovery of property by the Sheriff Clerk at Kilmarnock and the Scottish ministers detailed in certain calls in the specification of documents. On the applicant’s unopposed motion, the petition was otherwise withdrawn.
103.  On 12 March 2007 the Sheriff Clerk at Kilmarnock disclosed the property held as ordered by the High Court.
104.  On 14 March 2007 the applicant’s agents wrote to agents for Strathclyde Police and the Crown requesting a timescale for disclosure of documents.
105.  On 18 May 2007 the applicant’s agents wrote to agents for Strathclyde Police in relation to intelligence and photographs disclosed.  On the same day they wrote to the Crown stating that the petition for recovery of documents had been withdrawn on the undertaking that the documentation still outstanding would be provided.
106.  On 23 May 2007, at a procedural hearing before three judges in the appeal against conviction and sentence, the court heard that information had been passed by both the Crown and Strathclyde Police to the applicant’s agents. The parties confirmed that further discussions would proceed and that eight days would be required for the substantive appeal hearing. The court appointed the appeal to a date to be fixed and directed that eight days should be reserved for the hearing; and ordered the parties to lodge a note of outline arguments and a note of relevant authorities no later than 21 days before the hearing. A further procedural hearing before three judges was to be fixed on a date about six weeks after the present hearing in order for the court to be addressed on progress in relation to disclosure and any amendments to the grounds of appeal.
107.  On 28 May 2007 the applicant’s agents wrote to the Crown requesting a meeting date and providing a discussion document regarding disclosure. They also wrote to agents for Strathclyde Police requesting permission to view the principal copies of photographs and providing a discussion document regarding disclosure. On 29 May 2007 they wrote to the agents for Strathclyde Police requesting information regarding the “tip‑off” which led to the search of the applicant’s house. On 15 June 2007 they requested from Strathclyde Police delivery of documentation before 18 June 2007 and sight of an original photograph. On 19 June 2007 a disclosure meeting took place between agents and counsel for the applicants, agents and counsel for Strathclyde Police and a representative of the Crown.  On 22 June 2007 the applicant’s agents wrote to the agents for Strathclyde Police requesting reports of an incident involving the applicant in 1983 and for disclosure of a surveillance log book.
108.  On 25 June 2007, the applicant’s agents advised the Crown that an application to have a procedural hearing in the case withdrawn from the court roll of 28 June 2007 and for a new date to be assigned in the week beginning 2 July 2007 because of the applicant’s counsel’s absence on holiday had been granted by the court.
109.  On 5 July 2007 a procedural hearing before three judges in the appeal against sentence and conviction took place. The applicant’s counsel addressed the court on progress made regarding disclosure and advised that issues of principle might yet have to be considered by the court. The Crown confirmed that disclosure would continue and noted that the subject of disclosure in appeals was to be considered in appeals in several other cases before the court fixed for late August 2007. The court allowed the applicant four weeks within which to lodge any further petition for recovery of documents and four weeks thereafter for answers, and continued the appeal to a further procedural hearing to be held in the week beginning 24 September 2007.
110.  On 19 July 2007, the applicant was granted a two-week extension of the time allowed for lodging his new petition for recovery of documents.
111.  On 24 August 2007 the applicant’s agents lodged a further petition for recovery of documents.
112.  On 11 September 2007 a meeting took place between the Crown, and agents and counsel for Strathclyde Police to discuss the further petition for recovery. On 20 September 2007 the Crown lodged answers to the further petition for recovery.
113.  On 25 September 2007 a procedural hearing before three judges was held in the appeal. By this stage answers had been lodged by Strathclyde Police and the Police Service of Northern Ireland. On the applicant’s motion and of consent the court allowed a further four weeks to adjust the petition and answers. A further procedural hearing was fixed for six weeks’ time.
114.  On 17 October 2007 the applicant’s agents requested an extension of time for the adjustment of the second petition for recovery of documents and answers to 6 November 2007. On 18 October 2007 the court granted the application.
115.  On 26 October 2007 a meeting was held between the Crown, counsel for the applicant and Strathclyde Police regarding the applicant’s petition for recovery of documents.
116.  On 6 November 2007 the applicant’s agents lodged an amended petition for recovery of documents.
117.  On 17 December 2007 the applicant’s agents lodged a second devolution minute arguing that the applicant could not know whether the Crown had discharged its disclosure obligations and indicating that there was reason to suppose that the Lord Advocate had not discharged her obligation, without saying why.
118.  On 17 and 18 December 2007 amended answers were lodged by Strathclyde Police and by the Crown in the second petition for the recovery of documents.
119.  On 19 December 2007 a procedural hearing took place before three judges. The applicant’s counsel advised that there were outstanding issues relating to disclosure in respect of Strathclyde Police. The court assigned a further procedural hearing in January 2008 to afford the parties an opportunity to consider the terms of the court’s pending opinion in McDonald and others v HM Advocate, a case which dealt with the matter of disclosure. The court continued the devolution minute to that hearing and directed that a hearing on the petition and answers concerning recovery of documents be assigned on a date afterwards fixed. Provisional dates in February and March 2008 were assigned.
120.  On 21 December 2007 the Appeal Court issued its opinion in McDonald and others v HM Advocate.
121.  On 15 January 2008, at a procedural hearing before three judges, the applicant’s counsel advised the court that discussions with the Crown had been suspended pending the issue of the McDonald and others decision. The applicant’s counsel moved for a continuation in order to consider fully the implications of that case and to lodge a third petition for recovery of documents if so advised. The court allowed the applicant a further fourteen days to lodge a fresh or supplementary petition, with a further seven days thereafter for answers from the Crown and Strathclyde Police. A full hearing on the petition and answers was fixed for 11-14 March 2008. A procedural hearing in the substantive appeal before three judges was assigned around four weeks after the date of the present hearing to consider the need for written notes of argument for the March 2008 hearing.
122.  On 29 January 2008, the applicant’s agents lodged a further petition for recovery of documents and a new associated devolution minute.  On 5 February 2008 answers were lodged for the Crown and Strathclyde Police.
123.  On 13 February 2008 a procedural hearing was held before three judges. The applicant’s counsel indicated that both outstanding petitions would be argued at the hearing fixed for 11-14 March 2008. The court intimated that Strathclyde Police should remain as a party at that hearing and that it should no later than 4 March 2008 lodge details of an inventory of documents disclosed. The court further directed that the applicant was to lodge a note of argument by 26 February 2008 and the Crown by 4 March 2008; and that the applicant was to lodge an inventory detailing the extent of disclosure already made and the issues in relation to material not disclosed. The consideration of the proposed devolution minute was continued to the hearing of 11-14 March 2008.
124.  On 26 February 2008 the applicant’s agents lodged outline submissions for the March hearing.  On 5 March 2008 the Crown lodged outline submissions for the March hearing. It also intimated to the applicant’s agents a Crown schedule of disclosure indicating which documents had been disclosed and when, during the period from January 2001 to March 2008. The schedule showed regular disclosure from 9 January 2001 to 17 September 2001. Disclosure resumed on 23 August 2006 and was continuing.
125.  On 11-14 March 2008 a full hearing took place before three judges on the petition for recovery of documents and answers. The applicant’s counsel spoke for all four available court days and did not conclude his submissions. The hearing was continued to a further hearing to be fixed. In the absence of any inventory from the applicant detailing the extent of disclosure already made and the issues in relation to material not disclosed, the court requested that prior to the next hearing the defence consider the Crown’s schedule of disclosure and confirm in writing which documents, if any, had not been disclosed by the Crown.
126.  On 22 May 2008 a procedural hearing took place before three judges. The proceedings were continued to await the outcome of the Privy Council’s decision in McDonald and others. A two-day hearing set down for 12-13 June 2008 was discharged.
127.  On 8 August 2008 the applicant’s agents wrote to the Crown indicating that they had not received the Crown schedule of disclosure to which the court had referred in its hearing of 11-14 March 2008 and requested a copy.  On 18 September 2008 the Crown replied to the applicant’s agents that the relevant schedule together with annexes was provided to them on 5 March 2008. A further copy was provided.
128.  The Privy Council handed down its decision in McDonald and others on 16 October 2008.
129.  On 28 October 2008 the Crown sent further documents to the applicant’s agents, including a revised and updated Crown schedule of disclosure together with papers under reference to various calls in the specification of documents annexed to the applicant’s petition for recovery of documents.
130.  On 22 January 2009 the Crown wrote to the clerk seeking to make progress in the appeal proceedings. The clerk undertook to ask the applicant’s agents to clarify whether they still wished to argue the petitions for recovery in whole or in part.  On 24 March 2009 the Crown wrote to the applicant’s agents asking them how they intended to proceed with the appeal and advising them that they were anxious that progress be made.
131.  On 6 May 2009 a procedural hearing took place before three judges. The Crown advised the court that all statements, previous convictions and outstanding charges in relation to all witnesses at trial had been disclosed and calls in each of the applicant’s petitions for recovery had been satisfied. The Crown moved for the appeal to be assigned to a full hearing. The defence moved to withdraw the outstanding petitions for recovery currently before the court and indicated that it was content for a full hearing to be fixed, provided that it did not take place before autumn 2009, to allow time for further inquiries. The court allowed the petitions to be withdrawn and appointed the appeal to a full hearing of eight days’ duration to be held no sooner than autumn 2009. It directed the applicant to lodge outline written submissions no later than four weeks before the hearing and the Crown to lodge outline written submissions no later than two weeks before the hearing.
132.  The court assigned 29 September 2009 to 9 October 2009 as the dates for the substantive hearing in the applicant’s appeal against conviction and sentence.
133.  On 21 September 2009, following the disclosure process which had taken place, the applicant lodged a ground of appeal regarding non‑disclosure, in relation to a police statement by I.C., a witness in the case.
134.  The appeal against conviction was heard between 29 September 2009 and 9 October 2009.
135.  On 9 March 2010 the Appeal Court handed down its judgment refusing all the grounds of appeal against conviction. The judgment was 128 pages long, and was detailed and comprehensive. For full details of the court’s judgment, see the summary in Beggs (No. 2), cited above.
136.  As to the delay in the proceedings, the court noted the following:
“2. Given the time which has flowed since the appellant’s conviction, it is appropriate to say something of the steps which have occurred in this regrettably protracted appeal process. 3. In brief, on 2 July 2002 the appellant lodged a note of appeal. Following the obtaining from the trial judge of the requisite report, the matter was in due course considered by a single judge who, on 20 December 2002, granted leave to appeal but only as respects certain grounds, which the single judge sought to identify by the exclusion of certain paragraphs of the rather lengthy and discursive note of appeal. The appellant then required the application for leave to be considered, as respects the excluded paragraphs, by a triumvirate ‘second sift’ bench. That bench refused to grant leave for any of the excluded grounds. The appellant thereafter brought a petition to the nobile officium of the High Court of Justiciary challenging that second sift decision. The decision in that petition – issued on 8 December 2004 – identified that where an applicant for leave to appeal is dissatisfied with a decision of a single judge allowing some, but refusing other, grounds of appeal to be argued the correct procedure to be followed is an application under Section 107(8) of the Criminal Procedure (Scotland) Act 1995 and that the further application to the ‘second sift’ followed in the present case, albeit no doubt common practice at the time – was incompetent ... 4. Following that decision, the appellant duly lodged an application in terms of Section 107(8) of the 1995 Act, which was heard on 28 October 2005 and in consequence of which the court, on 25 November 2005, granted leave to argue certain additional grounds ... The court then invited the submission of reformulated grounds of appeal framed in light of the initial sift decision and its decision of 25 November 2005 and such reformulated grounds of appeal were duly lodged with the court on 16 January 2006. With the exception of an additional ground of appeal tendered only at the opening of the hearing before us, to which we shall subsequently refer – those reformulated terms are the grounds of appeal which form the basis of this appeal. The formal interlocutor allowing those reformulated grounds of appeal to be the grounds of appeal was pronounced on 11 July 2006. 5. Notwithstanding that the grounds of appeal had thus eventually been reformulated and settled and allowed to be argued in July 2006, those acting for the appellant then embarked upon a lengthy process of seeking various orders for disclosure of documents and information from the Crown. It would not be profitable to recount the details of this exercise. It suffices to say that the insistence of those acting for the appellant in that exercise has, so far as it is possible to tell, had little significant result but it has substantially delayed the hearing of this appeal. Only on 6 May 2009 did counsel for the appellant withdraw his applications for orders for disclosure and for recovery of documents, thus enabling a hearing of the appeal to be fixed. At a cost no doubt to the progress of the cases of other appellants, the court was able to arrange for the appeal to be heard over eight days in ...October 2009.”
137.  On 27 May 2010 permission to appeal to the Supreme Court was refused by the Appeal Court. Further details of the decision are set out in Beggs (No. 2), cited above.
138.  On 29 July 2010 the applicant lodged a devolution minute in which he contended that there had been a breach of his right under Article 6 of the Convention to a hearing of the criminal charges against him within a reasonable time. Particular criticism was made in the minute of disclosure of information by the prosecution.
139.  The applicant’s appeal against sentence was due to be heard on 4 August 2010. On that day, the applicant requested, and was granted, an adjournment of the hearing to allow him to request leave to appeal against conviction from the Supreme Court.
140.  On or around 21 October 2010, the applicant lodged an application for permission to appeal and an extension of time with the Supreme Court. In his application, he explained that the delay was caused by the need to await further information from the police, which was received on 29 September 2010.
141.  On 16 December 2010 the Supreme Court refused the applicant’s application for leave to appeal against conviction.
142.  On 22 February 2011 a hearing took place before the Appeal Court in the applicant’s outstanding appeal against sentence. His counsel intimated that he did not intend to pursue the grounds stated in his note of appeal against sentence (that there had been a miscarriage of justice in selecting a punishment part of twenty years). The appeal against sentence was not, however, formally abandoned; nor was it then refused for non-insistence. Given the existence of the devolution minute, it was continued for fuller argument. Provision was made for written submissions to be lodged by each party, which was duly done, and a hearing was fixed for 1 April 2011.
143.  On 1 April 2011, pressure of business at the court prevented a hearing taking place. The court therefore fixed 7 April for hearing the matter.
144.  On 7 April 2011 a hearing took place in the case. The applicant’s counsel insisted that his application was not an appeal against sentence under the 1995 Act, albeit the remedy sought from the court was a reduction in the punishment part which had been specified; it was an application to the court under the Human Rights Act 1998, independent of the 1995 Act.
145.  On 12 May 2011 the Appeal Court issued its opinion. The court examined the provisions of the Human Rights Act and considered it plain that the possibility of bringing proceedings under section 7(1)(a) of the Act (see paragraph 191 below) was limited to bringing proceedings in the civil courts. There was therefore no possibility, under section 7(1)(a), of bringing proceedings in any criminal court. The Court acknowledged that under the provisions in section 7(1)(b) of the Act, a person claiming that a public authority had acted unlawfully could rely on Convention rights in any legal proceedings, which could include criminal proceedings. However, it continued:
“14. ... But they import that the legal proceedings in question are still in dependence and that reliance is placed on the Convention right or rights in those proceedings during their dependency.”
146.  The court explained that where a person who had been convicted in criminal proceedings complained that his right to determination of the criminal charge or charges against him within a reasonable time had been infringed, he could, in these proceedings, seek a remedy. It referred to the case of Mills v HM Advocate, where Lord Steyn had said that in criminal proceedings the remedies available could include an order for discontinuance of a prosecution, quashing of the conviction, reduction of the sentence, monetary compensation or a declaration (see paragraphs 196-197 below). It noted that the complaint that there had been a breach of that appellant’s Article 6 rights had been made in the form of a further ground of appeal, in the context of an appeal against sentence. Other relevant domestic case-law considered by the court provided evidence of the same approach.
147.  The court noted that the applicant had also lodged a devolution minute, under the Scotland Act (see paragraphs 187-189 below), addressing delay, but considered that there was ample authority that a devolution issue did not have an existence separate from the process in which it was taken. Indeed, it observed, the contrary was not suggested by counsel for the applicant.
148.  The court therefore concluded:
“20. We are accordingly satisfied that, if an appellant in criminal proceedings seeks to maintain that his right to a determination within a reasonable time of the charge or charges against him has, in breach of Article 6(1) of the Convention, been infringed and that a remedy should be afforded to him by the criminal court, he should do so by focusing that contention in a ground of appeal. Ordinarily that will be in a ground of appeal against sentence – if reduction in sentence is the remedy sought. If the delay complained of arises in, or mainly in, the appellate proceedings themselves, it will not be practicable to submit such a ground at the outset of these proceedings. But it will or should be evident to any person concerned about such delay to identify and formulate it in good time before the proceedings are otherwise concluded. Leave can then be sought to expand any existing ground of appeal against sentence to include the complaint or, if there is otherwise no appeal against sentence, leave can be sought to lodge such an appeal out of time. There is no difficulty about the court affording a remedy of reduction of sentence within its existing powers. The court is in use when dealing with appeals against sentence to take into account relevant circumstances which have occurred since sentence was passed. In appropriate circumstances the court can award just satisfaction for any infringement of Article 6(1) by exercising its power to reduce the sentence originally passed. 21. In these circumstances [counsel for the applicant’s] argument founded on a supposed application under the Human Rights Act 1998 unrelated to the appellate provisions of the 1995 Act is misconceived. Although encouraged to do so, he resisted the suggestion that his arguments on the merits of delay might be presented in the form of an amended ground of appeal against sentence or by seeking leave of the court under section 110(4) of the 1995 Act to found his argument on an aspect not contained in any note of appeal. In these circumstances we have no alternative but to refuse his application as incompetent. His existing ground of appeal against sentence not being insisted on, it also must be refused.”
149.  The court considered, however, that it would not be in the interest of justice to leave the case without making some observations on the merits of the complaint of undue delay. It indicated that, notwithstanding evidence of extensive communications between the parties and hearings before the court throughout, the period until final disposal of his appeal against conviction was such as to give grounds for real concern.
150.  The court noted that no complaint was made regarding the period up until conviction and sentence. It observed in any event that part of that period elapsed because the applicant had fled to the Netherlands and resisted measures to extradite him to Scotland. Once he was returned to Scotland in January 2001, proceedings had moved reasonably expeditiously having regard to the complexity of the issues, including the issues raised by the applicant in defence. The length of the trial had been, in the court’s view, commensurate with the nature of the issues raised.
151.  The court noted that the applicant’s first complaint was in respect of delay arising in the proceedings which ultimately resulted in leave being granted, on 25 November 2005, to appeal against conviction and sentence without qualification. He did not rely on the earlier part of that period, until 2 July 2002, when he finally lodged grounds of appeal. The court continued:
“24. ... That time was largely the result of applications made by the applicant for extensions of time, which given the complexity of the issues may well have been justified. The complexities may also explain, at least in part, the time taken by the trial judge to produce his report. Matters thereafter proceeded reasonably expeditiously to a decision (on 21 December 2002) by the single judge on the application for leave to appeal. It was thereafter that time passed, which, in retrospect, might have been better occupied. The single judge had refused leave to appeal in respect of certain of the stated grounds. The applicant was dissatisfied with that decision and wished leave on all the grounds stated. But he set about seeking to secure this by what turned out to be the wrong legislative route. He can hardly be criticised for doing so, since the route which he took was that generally regarded at that time by the legal profession as appropriate. The judges who considered his application to the High Court under section 107(4) of the 1995 Act fell into the same error. However, the basic explanation for the error was the problematic character of the relevant legislation. It was only after that had been addressed and elucidated on 8 December 2004 that matters could proceed on the right basis. This two-year excursion was unfortunate but it was attributable to the state of the legislation for which neither of the relevant public authorities, the Crown and the court, is responsible.”
152.  The court then turned to the applicant’s second complaint, in respect of the period which had elapsed between the presentation of the applicant’s first petition for recovery of documents (on 31 July 2006) and the date (28 October 2008) when the Crown had disclosed the final documents sought. In this respect, it noted:
“25. ... Over that period the applicant lodged three separate petitions (each subsequently adjusted or amended) for recovery of materials from the Crown and others. The substantive hearing on his appeal could not take place until these petitions were disposed of or withdrawn. In the event all these petitions were withdrawn, the only executive orders made under any of them being those against the sheriff clerk at Kilmarnock and the Scottish ministers on 2 March 2007. These orders were promptly complied with. It is no doubt true that the bringing of these various petitions may to some extent have been instrumental in the disclosure of information; but what is more material is whether this exercise was in the event justified ... [T]he appeal court which heard the applicant’s substantive appeal concluded that, in so far as it was possible to tell, the recovery process had had little significant result. Effectively, it caused only delay in disposal of the appeal. This delay can thus be substantially attributed to the applicant and his advisers. [Counsel for the applicant] said that the Crown was at fault in not producing certain documentation until the decision of the Supreme Court was issued in the case of McDonald and Others. But, while the principles of disclosure have been clear since McLeod v HM Advocate 1998 SCCR 77, the practical application of them was, as appears from Lord Hope’s judgment in McDonald and Others ..., an evolving process ... Without attempting to demonstrate their materiality to the issues in the appeal, [counsel for the applicant] made a general assertion that the Crown had failed to disclose witness statements. But it seems plain that by at least November 2006 (a few weeks after the lodging of the first petition for recovery of documents) the Crown had, with one exception, disclosed the police statements of all the civilian witnesses who gave evidence at the trial. The exception was a police statement given in December 1999 by [I.C.]. This was, it seems, disclosed only in July 2009. It formed the basis of an additional ground of appeal. This ground was discussed ... in the opinion of the court which heard the substantive appeal. That court concluded ...:
‘We therefore have grave difficulties in seeing how, realistically, disclosure of the police note of the interview could have possibly affected the outcome of the trial or given a real possibility of a different outcome. We are accordingly satisfied that the absence from the defence file of the police note of the interview with [I.C.] (an absence also shared, we understand, by the trial Advocate depute) did not result in material prejudice to the appellant or in the trial being unfair.’
While the non-disclosure earlier of [I.C.’s] statement may have been an oversight by the Crown, there is no reason to conclude that that oversight caused or materially contributed to the time spent on the recovery exercise. We are accordingly not persuaded that there was any material failure of disclosure by the Crown which resulted in significant delay in the appellate process.”
153.  The court observed that counsel for the applicant did not suggest that the Crown or the court had otherwise significantly contributed to the delay in that process, which, it noted, given the complexities involved would inevitably have taken a substantial time to complete. It concluded:
“26. ... In these circumstances we are not persuaded that the applicant’s Article 6 right to determination of the charges against him within a reasonable time has been infringed. Much of the time was spent in pursuing grounds of appeal which were unmeritorious. We would add that, in contrast with other cases, there is no suggestion that the applicant had suffered any anxiety or other adverse effect by reason of any delay.”
154.  Finally, the court explained, for the sake of completeness, that:
“[t]he hearing of this application was scheduled for Friday 1 April 2011 but, because of pressure of other business, was unable to proceed on that day. The court was anxious, given the passage of time which had already occurred, that the hearing should not be postponed longer than was essential. It fixed on the following Thursday, 7 April, for hearing the matter. There was originally some uncertainty as to whether both preferred counsel would be available on that day, but that was in due course resolved by accommodating the other commitments of the applicant’s counsel. Both counsel were fully heard on the afternoon of 7 April, the court sitting late to complete the hearing.”
155.  On 21 March 2012 the Supreme Court refused leave to appeal. The following reasons were provided:
“Permission to appeal refused because the Supreme Court does not have jurisdiction to hear an appeal against a decision of the High Court of Justiciary refusing to give the appellant a remedy under the Human Rights Act 1998 and because it does not have an original jurisdiction to deal with devolution issues which have not been the subject of decision by the High Court of Justiciary.”
156.  On a number of occasions, starting in about February 2003, letters from the applicant’s legal advisers were opened by prison officers at Peterhead. Although the applicant received official apologies and assurances that it would not happen again, the incidents continued.
157.  In September 2003 the applicant lodged a petition for judicial review in respect of the opening of his privileged correspondence by prison staff, arguing a violation of Article 8 of the Convention.
158.  On 5 September 2003, in the context of the judicial review proceedings, the Scottish ministers gave an undertaking not to open, or have the applicant open in the presence of prison staff, the applicant’s privileged correspondence or correspondence from the Complaints Commissioner sent to HM Prison Peterhead. The judge refused the applicant’s motions for interim interdict (injunction) and interim declarator, noting the terms of the undertaking. The applicant appealed.
159.  While the applicant was detained in HM Prison Edinburgh, his letters were once again opened, the undertaking of the Scottish ministers applying only to mail sent to HM Prison Peterhead. On 19 May 2004, the Scottish ministers extended their undertaking to cover HM Prison Edinburgh.
160.  On 26 November 2004 a prison officer at Peterhead opened a letter from the Complaints Commissioner to the applicant in the latter’s presence. It transpired that the staff responsible for sorting and delivering mail did not understand that the undertaking applied to correspondence with the Complaints Commissioner.
161. The applicant sought a contempt of court order against the Scottish ministers for the breach of the undertaking. On 15 March 2005, judgment was handed down in the appeal and the court found the Scottish ministers in contempt of court.
(b)  The judicial review proceedings regarding the prison transfer
162.  Following the applicant’s transfer to HM Prison Edinburgh in May 2004 (see paragraph 66 above), he sought judicial review before the Court of Session of the decision to return him to HM Prison Peterhead.
163.  A hearing on a motion for an interim order in the judicial review proceedings regarding the applicant’s prison transfer took place on 2-3 June 2004. The applicant complained that interference with his correspondence and the distance between HM Prison Peterhead and his chosen counsel meant that preparation of his substantive criminal appeal against conviction and sentence and of his application to the nobile officium was being hampered.
164.  The applicant was returned to HM Prison Peterhead on 4 June 2004.
165.  On 18 June 2004, Lord Drummond Young refused the applicant’s motion for an interim order against his prison transfer. He noted that the applicant had had 33 visits from his legal representatives since the move to Peterhead and concluded:
“I do not think that the difficulties involved in travelling to Peterhead can reasonably be considered a material obstacle to the petitioner’s preparations for his appeal and relative application to the nobile officium.”
166.  Between the applicant’s return to Peterhead and 28 January 2005, the applicant made some 540 telephone calls to his legal advisers and received some 111 privileged letters.
167.  On 9 March 2005, following a full hearing on the judicial review petition in respect of the prison transfer, Lord Carloway dismissed the petition. He issued his opinion on 24 March 2005, holding that:
“the petitioner’s fundamental complaint is that his location at Peterhead, pending the resolution of the petition to the nobile officium and his criminal appeal, mean that his right to effective access to his legal advisers is being denied. However, he has already been brought down to Edinburgh for a month to secure ready access to these advisers. He has also been brought to Edinburgh on at least two occasions since then. The petition to the nobile officium has been disposed of. Many months have now passed, during which there must have been ample time in which to discuss his appeal by way of telephone calls, written correspondence and consultation. A date for an appeal has not yet been fixed, so there will be even further opportunity for such discussion.”
168.  The applicant appealed the decision.
169.  On 10 March 2006, the applicant’s appeal in the judicial review proceedings against his prison transfer was dismissed.
170.  While in Peterhead, the applicant made 2,916 private calls (other than to family and friends) in 2004, 2,916 private calls in 2005, 2,626 private calls in 2006, 2,838 private calls in 2007, 3,145 private calls in 2008 and, between January and April 2009, 928 private calls. During his time in Edinburgh, the applicant made approximately 118 calls. Between 2002 and April 2009, he received approximately 100 visits from solicitors and counsel regarding his various legal proceedings. Between 2003 and April 2009, he received approximately 1,121 privileged letters and packets.